The Tennessee Court of Appeals entered an interlocutory Order today, granting a preliminary victory to WTVF and Scripps in their ongoing litigation with Nashville District Attorney Glenn Funk. In so doing, the Court narrowed the parameters of the doctrine known as the “Fair Report Privilege” to provide more protection for journalists. The Court also clarified how the Fair Report Privilege works when both it and Tennessee’s reporter’s shield are invoked by a news organization/journalist.

Here is what it means for the litigation: Other than public records upon which WTVF’s Phil Williams relied, Funk cannot get access to Williams’ investigative files. So, this is a nice win for the station (and reporting, in general). This particular sliver of the larger dispute was over Funk’s discovery requests to WTVF and the station’s refusal to turn over certain material pertaining to its sources. The trial court had ordered the station to turn the material over and the station appealed to the Court of Appeals to protect them from having to do it.

Here is what it means for the law: If a news organization wants to defend against a defamation suit by claiming it was just reporting what was said at a city council meeting or what was alleged in a pleading, it will have to disclose those “sources,” but doing so will not require that news organization to turn over its investigative files or waive the protection of the shield law.

To thumbnail the background, Funk is suing the station, ownership group and reporter for defamation based on some other lawsuits about which Phil Williams had reported on WTVF. Because Funk is a public figure, he has to prove actual malice in order to prevail.

In requesting the “source” materials from the station, he claimed he needed them to show actual malice. In defending against these requests, the station raised two defenses. First, the station said that everything Phil Williams reported came from public records or meetings and was therefore protected by Tennessee’s Fair Report Privilege. Second, the station argued that Tennessee’s shield law protected it from being compelled to reveal its sources.

At the trial court level, these defenses got somewhat muddled and the Court of Appeals was left to separate the conflated issues.

To understand this, you have to start with the shield law. Simply put, it basically protects a journalist from disclosing his source, unless the reporter blames the source for the material he publishes. Tenn. Code Ann. § 24-1-208(b). If you blame your source (i.e., I was just reporting what my source told me), then you arguably have to disclose your source.

The Fair Report Privilege works a little differently. It is a defense to a claim of defamation. In essence, you (the journalist) are not defaming someone if your report is “of a public proceeding or official actions of government that have been made public, is a fair and accurate summary of the proceedings, and is balanced and neutral. (Note: The Court “amended” its earlier ruling in the Grant v. The Commercial Appeal, 2015 WL 5772524 (Tenn. Ct. App. 2015) case to remove the requirement that the report not be made with actual malice).

Because the Fair Report Privilege is actually a defense based on your source (i.e., I was just reporting what happened at the meeting, or what was said in the lawsuit), it comes very close to conflicting with the shield law. Funk wanted to use this conflict to say the station could not rely on the shield law at all. The Court noted in its Order today that:

We find that the trial court’s construction of subsection (b) of the statute results in the exemption’s swallowing up the protection that subsection (a) provides to media defendants whenever disclosure of a source is sought. In most, if not all, cases, a news gatherer is going to rely on a “source of information” as the basis for his or her publication or broadcast. According to the trial court’s ruling, any time a news gatherer defends a defamation claim by invoking the fair report privilege, the news gatherer loses the entire protection provided under section (a) of the Shield Law and must disclose every source collected, whether used in the story or not.

The Court resolved this apparent conflict the following way:

We believe a better interpretation would be to allow a media defendant to assert the fair report privilege while also subjecting to disclosure only the sources the media defendant identifies as the basis for the story. In other words, once a news gatherer asserts the fair report privilege, the protections of section (a) of the Shield Law come into play to protect sources. To the extent that under the fair report privilege the news gatherer must indicate the source of the news report, that source loses its protected status under section (b) of the Shield Law and must be disclosed. If “the source of any allegedly defamatory information” is one or more documents, the document(s) must be produced to the claimant. This is the only way a court can compare the alleged source with the publication or broadcast to determine whether the news gatherer is, in fact, entitled to assert the fair report privilege as a defense to the claim for defamation, i.e., whether the publication or broadcast was a fair and accurate report of the proceeding or document and whether the report was balanced and neutral.

Other than the person or document(s) the news gatherer identifies as the source(s) of his or her publication or broadcast, however, section (a) of the Shield Law protects the news gatherer from having to produce any other information or documents from his or her investigative files. The trial court’s order granting Mr. Funk’s motion to compel the Defendants to describe their investigations and produce all documents they obtained or relied on in their investigations of the two news stories is contrary to this interpretation of the statute. Thus, we find the trial court erred when it granted Mr. Funk’s motion to compel.

(emphasis added).

Makes sense, right? In layman’s terms, if WTVF wants to say it was just reporting what was said at a public meeting or in some other lawsuit, it has to disclose those sources, but doing so does NOT require WTVF to turn over its files or produce any non-public documents that may have contributed to the reporting.

Darrell Phillips is a journalist-turned-lawyer who advises and represents members of the media in contract matters, employment disputes and in litigation relating to speech rights. He also frequently advises corporate clients on media relations matters.

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